Proclamations and more legislative changes to our new planning system

23 June 2020

On 18 June 2020, the following proclamations and variation regulations were Gazetted:

• Planning, Development and Infrastructure Act (Commencement) Proclamation 2020;
• Planning, Development and Infrastructure Act (Designated Day) Proclamation 2020;
• Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2020;
• Planning, Development and Infrastructure (Transitional Provisions) (Miscellaneous) Variation Regulations 2020; and
• Planning, Development and Infrastructure (Swimming Pool Safety) (Construction of Safety Features) Variation Regulations 2020.

The Proclamations

The Proclamations have the combined effect that the following provisions of the PDI Act commence on 31 July 2020 to coincide with the commencement of the Planning and Design Code (and the full operation of the PDI Act) in Phase 2 council areas:

• Clause 19 of Schedule 6. This provision inserts a new section 11C into the Liquor Licensing Act 1997 which ensures that this Act cannot be used to duplicate, or be inconsistent with matters dealt with by the PDI Act, stating:

11C—Steps to avoid conflict with planning system

The Commissioner should—

(a)          in the development and implementation of a code of practice; or

(b)          in the assessment of an application for a licence under this Act; or

(c)          in the imposition of conditions under this Act,

take reasonable steps to avoid any inconsistency with, or the duplication of, matters that are dealt with or addressed under the Planning, Development and Infrastructure Act 2016.

• Clauses 32(2), 33 and 34 of Schedule 8. These provisions are transitional and allow Land Management Agreements, car parking funds and urban trees funds to continue under the PDI Act as well as recognising commercial competitive interests formed for development applications made under the Development Act 1993 under the PDI Act.
• Further, clause 29 of Schedule 8 is enacted so that section 157 of the PDI Act – which establishes building fire safety committees and empowers them to issue notices, etc. in respect of buildings with inadequate fire safety – does not apply to buildings owned or occupied by the Crown or agencies or instrumentalities of the Crown prior to 31 July 2020.

Variations to the PDI (General) Regulations

A significant number of variations have been made to the PDI (General) Regulations with immediate effect. The variations which materially affect councils, assessment panels and assessment managers are below:

• regulation 3A, reflect pandemic provisions of the Development Regulations 2008 which allow supermarkets to load and unload and to open to the public at any time of the day up until and including 30 September 2020;
• regulation 3F to correct a typographical error where the term ‘significant tree’ was erroneously used instead of ‘regulated tree’ and to replace a reference to the Natural Resources Management Act 2004 with its replacement, the Landscape South Australia Act 2019. References to the Landscape South Australia Act 2019 have been inserted where relevant throughout the regulations;
• regulation 19 to ensure that documents published by the agency administering the Heritages Places Act 1993 at the relevant time can be directly incorporated into the Planning and Design Code pursuant to section 71(b) of the PDI Act;
• regulation 22 to expand the functions and powers of assessment managers to include decisions regarding the giving of public notice and whether performance-assessed development is exempt from notification under the Planning and Design Code;
• regulation 47(4) to allow councils to set their own fee for placing a public notice on a development site and to specify that a relevant authority is not responsible for ensuring that the notice is so placed, unless the fee is paid. We recommend that Phase 2 councils consider setting their fees as soon as possible given the 31 July 2020 commencement date for Phase 2;
• regulation 103 to allow councils to specify that an inspection of a building must occur prior to the issue of a certificate of occupancy and to ensure that no relevant authority may issue the certificate until the inspection takes place. The decision to require an inspection to occur is discretionary, not obligatory and may be useful for complex commercial, mixed use, multi-storey residential and/or industrial-type developments;
• regulation 112 to address omissions in specifying qualifications for authorised officers, including for emergency orders issued under section 155 of the Act, ensuring that such orders can be issued validly;
• Schedule 4 to include exemptions for bushfire recovery works which presently exist in the Development Regulations 2008;
• Schedule 8 to increase the requirements for plans and details lodged with development applications; and
• Schedule 9 to allow for referral agencies to provide “advice” as well as “direction”. Clauses 21 – 23 of the Table in Schedule 9 has been amended so that the referrals made under these provisions are for “advice” only and not “direction”.

Variations to the PDI (Transitional) Regulations

These regulations, which are in immediate effect, achieve the following:

• Councils may apply to the Minister for adoption of DPA’s proposing the listing of local heritage places up to and including 1 July 2021, rather than 30 December 2020. This will allow more time for DPA’s converting contributory items to local heritage places to be undertaken by councils; and
• the scope of major projects and developments and Crown development applications which may continue to be assessed and approved under the Development Act 1993 despite the commencement of the PDI Act has been broadened.

Variations to the PDI (Swimming Pool Safety) Regulations

Regulation 7 has been amended to adjust the date by which designated safety features (i.e. fencing, etc.) for swimming pools must be completed, from 2 months of the completion of the swimming pool to either 2 months from the completion of the swimming pool or when the swimming pool is filled with water, whichever comes first.

Please call Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au with any questions.